Mst. SAFIA BEGUM Versus ABDUL RASHID M. SUBHAN HOTELWALA

1. The appellant filed application for ejectment of the respondent in respect of two commercial premises on the ground floor of the building No. 2/40 Najmuddin Street, Chand Bibi Road, Karachi. The appellant had earlier riled Rent Case No. 2896 of 1971 in which order had been passed under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance for deposit of rent. This case was dismissal for non-prosecution on 28-3-1983 but the respondent continued to deposit rent @ Rs. 100 P.M. in Court. In the ejectment application it was pleaded that the respondent has not deposited or made payment of rent from 1st September, 1984 to 31-3-1985. The respondent filed written statement in which it was pleaded that after tae dismissed of Rent Case No. 2896 of 1971 he used to send Rs. 100 P.M. regularly to his Advocate Mr. Hamid Ali who used to deposit the same in Court. As Mr. Hamid Ali Advocate died, the respondent was not able to obtain his file from his office. He further pleaded that he was regularly tendering the rent to the applicant, and there was no default in payment of the same. After dismissal of the rent case mentioned above the Advocate was made responsible to deposit the rent in Court, and the same was being deposited. No other plea was taken in the written statement. However, in the affidavit of evidence the respondent stated that after he was directed to deposit rent in Court in Rent Case No. 2896 of 1971 he continued to deposit the monthly rent in Court in advance for one year in the said proceedings through his Advocate Mr. Hamid Ali. In January, 1984 he went to the office of Mr. Hamid Ali Advocate and paid him Rs. 1,200 as advance to be deposited in Court in presence of his "Parokar Mr. Bashir Ahmed". Again he went in January, 1985 when he found the office closed and upon inquiry it was revealed that Mr. Hamid Ali Advocate has died, and there was nobody to return the file to him. Thereafter, he deposited Rs. 1,200 in Court on 3-4-1985 covering the rent for the period January, 1985 to December, 1985. He also learned in January, 1984 that only Rs. fi00 were deposited in Court. Thereafter he deposited the rent upto June, 1985 before riling of the case. He further deposited rent Rs. 1,200 each on 2-5-1985 and 3-9-1985.

2. The learned counsel for the appellant has contended that there is variance in the pleading and the evidence of the respondent with regard to the deposit of rent and therefore no reliance can be placed on the respondent's statement. The contradiction referred to is that in the statement the appellant has stated that he used to send Rs. 100 per month to his Advocate for deposit of rent whereas in the affidavit it has been stated that the rent was paid in advance yearly. No doubt there is a discrepancy to that extent but from the evidence it is clear that for the last many years the respondent had been depositing rent yearly in advance. Even in respect of the year 1984 the deposit was made for rent upto June, 1984. The dispute is in respect of the deposit from July to December, 1984 and from January to March, 1985. So far default upto December, 1984 is Respondent has pleaded that the rent for one year though paid to the who has died was not deposited. In this regard two pieces of are material. Firstly that in the past rent in advance at the rate of Rs. 1,200 P.M. was being deposited and secondly that Munshi of the Advocate Mr, Hamid Ali has deposited that in his presence. The respondent had given Rs. 1,200 for deposit of rent, but it seems that only Rs. 600. had been deposited by the Advocate, who died in December, 1984. The previous deposits as evidenced by the report of the Nazir clearly show that the rent was being deposited yearly @ Rs. 1,200 P.A. This had continued for the last many years. This fact read with the evidence of the respondent and the clerk of deceased Advocate lends support to the plea taken by the respondent that he had been paying Rs. 1,200 yearly and my view, it has sufficiently been established that the respondent had paid Rs. 1,200 to Mr. Hamid Ali, Advocate for depositing in Court towards threat of one year. The appellant's Advocate has seriously contended that on the facts wilful default is established. However, if for argument sake the respondent's explanation is accepted the question remains whether default in payment of rent for January, 1985 to March, 1985 has been committed. The rent for the month of January, 1985 was payable after the expiry of the said month within a period of 60 days. This rent ought to have been deposited on or before 1 st of April, 1985. The rent was deposited on 3-4-1985. No valid explanation for default m payment of rent for the month of January, 1985 has been offered by the respondent that the file was not available and he was making inquiries from the Advocate's clerk. Where there is a delay, the party should explain each and every day, but in this regard a very vague statement has been made. The respondent was aware that the rent for the month of January has not been paid. In January, 1985 the respondent had come to know about the death of the Advocate but the explanation given is that he was not able to get his file. The respondent was aware of the proceeding in which the rent was deposited. He could have himself deposited there or taken assistance of the Advocate's clerk or engaged any other Advocate. There was no impediment in paying rent directly to the appellant or to send it through money order. There was no reason to delay it for such a long period. I, therefore, set aside the order of the Controller, and allow the appeal. The respondent should I hand over vacant possession of the premises within a period of six months.

3. H.B.T:/S-234/K

4. Appeal allowed.